Principle of distinction

Introductory text

The basic axiom underlying International Humanitarian Law (IHL), i.e. that even in an armed conflict the only acceptable action is to weaken the military potential of the enemy, implies that IHL has to define who that potential is deemed to comprise and who, therefore, may be attacked and participate directly in the hostilities, but may not be punished for such participation under ordinary domestic law. Under the principle of distinction, all involved in the armed conflict must distinguish between the persons thus defined (the combatants) and civilians. Combatants must distinguish themselves (i.e., allow their enemies to identify them) from all other persons (civilians), who may not be attacked nor directly participate in the hostilities.

The dividing line between the two categories has developed over time, reflecting the conflicting interests between, on the one hand, powerful, well-equipped States that wanted a strict definition of clearly identified combatants, and, on the other, weaker States that wanted to retain the option to use additional human resources flexibly and thereby continue the hostilities even when their territory was under enemy control, which is practically impossible if combatants have to identify themselves permanently. The IHL of non-international armed conflicts does not even refer explicitly to the concept of combatants, mainly because States do not want to confer on anyone the right to fight government forces. Nevertheless, in such conflicts as well, a distinction must exist if IHL is to be respected: civilians can and will only be respected if government soldiers and rebel fighters can expect those looking like civilians not to attack them.

Today, the axiom itself is challenged by reality on the ground, in particular by the increasing “civilianization of armed conflicts”. If everyone who is not a (lawful) combatant is a civilian, in many asymmetric conflicts the enemy consists exclusively of civilians. Even if, in non-international armed conflicts, members of an armed group with a fighting function are not to be considered as civilians,[1] it is in practice very difficult to distinguish them from the civilian population. Furthermore, private military and security companies, whose members are usually not combatants, are increasingly present in conflict areas. On all these issues of “civilianization”, the concept of direct participation in hostilities is crucial, because civilians lose their protection against attacks while they so participate and may therefore be treated in this respect like combatants. The ICRC has tried to clarify this concept,[2 ] but its findings have sparked controversy.

“Civilianization” is not the only phenomenon challenging the principle of distinction. If the aim of the conflict is “ethnic cleansing”, the parties will logically and of necessity attack civilians and not combatants. If some fighters’ aim is no longer to achieve victory, but rather to earn a living – by looting or controlling certain economic sectors – they will logically attack defenceless civilians instead of combatants. Finally, if the aim of a party is to change the enemy country’s regime without defeating its army or occupying its territory, it may be tempted to pressure the enemy civilian population into overthrowing its own government. If the pressure takes the form of attacks or starvation tactics, it constitutes a violation of IHL. In any event, the effectiveness of such methods is doubtful. Indeed, experience shows that, when confronted with such constraints, the population tends to support its government rather than foment rebellion.

Readings

Suggested reading:

WATKIN Kenneth, “The Notion of Combatant, Armed Group, Civilians and Civilian Population in International Armed Conflicts”, in BERUTO Gian Luca (ed.), The Conduct of Hostilities: Revisiting the Law of Armed Conflict: 100 Years After the 1907 Hague Conventions and 30 Years After the 1977 Additional Protocols: Current Problems of International Humanitarian Law, Sanremo, 6-8 September 2007: Proceedings, Milano, Nagard, 2008, pp. 59-69.

Further reading:

WARD Christopher, “Distinction: the Application of the Additional Protocols in the Theatre of War”, in Asia-Pacific Yearbook of International Humanitarian Law, Vol. 2 (2006), 2007, pp. 36-45.

I. Activities, II. Rights, III. Punishable, IV. Protection

DEFINITION AND CHARACTERISTICS OF CIVILIANS AND COMBATANTS

Civilians

Combatants

= all persons other than combatants

= members of armed forces lato sensu (for a definition, see infra, Combatants and POWs, I. Who is a combatant?)

Readings

Suggested reading:

FERRELL William H., “No Shirt, No Shoes, No Status: Uniforms, Distinction and Special Operations in International Armed Conflict”, in Military Law Review, Vol. 178, Winter 2003, pp. 94-140, online: http://www.fas.org/man/eprint/ferrell.pdf.

PFANNER Toni, “Military Uniforms and the Law of War”, in IRRC, No. 853, March 2004, pp. 93-130.

KLEFFNER Jann K., “From “Belligerents” to “Fighters” and Civilians Directly Participating in Hostilities: on the Principle of Distinction in Non-International Armed Conflicts One Hundred Years After the Second Hague Peace Conference”, in Netherlands International Law Review, Vol. 54, No. 2, 2007, pp. 315-336.

CONDORELLI Luigi & NAQVI Yasmin, “The War against Terrorism and Jus in Bello: Are the Geneva Conventions Out of Date?”, in BIANCHI Andrea (ed.), Enforcing International Law Norms against Terrorism, Oxford, Hart, 2004, pp. 25-37.

CRAWFORD Emily, The Treatment of Combatants and Insurgents under the Law of Armed Conflict, Oxford, OUP, 2010, 213 pp.

GREENWOOD Christopher, “International Law and the ‘War against Terrorism’”, in International Affairs, Vol. 78/2, 2002, pp. 301-317.

KING Faiza Patel & SWAAK-GOLDMAN Olivia, “The Applicability of International Humanitarian Law to the ‘War on Terrorism’”, in Hague Yearbook of International Law, 2003, Vol. 15, 2002, pp. 39-49.

MCDONALD Neil & SULLIVAN Scott, “Rational Interpretation in Irrational Times: The Third Geneva Convention and War on Terror”, in Harvard International Law Journal, Vol. 44/1, 2003, pp. 301-316.

LIETZAU William, “Combating Terrorism: The Consequences of Moving from Law Enforcement to War”, in WIPPMAN David & EVANGELISTA Matthew (eds), New Wars, New Laws? Applying the Laws of War in 21st Century Conflicts, New York, Transnational Publishers, 2005, pp. 31-51.

SASSÒLI Marco, “Query: Is There a Status of “Unlawful Combatant”?”, in JACQUES Richard B. (ed.), “Issues in International Law and Military Operations”, in International Law Studies, Vol. 80, 2006, pp. 57-69.

HOFFMANN Michael H., “State Practice, the Customary Law of War and Terrorism: Adapting Old Rules to Meet New Threats”, in IYHR, Vol. 34, 2004, pp. 231-249.

JACKSON Jami Melissa, “The Legality of Assassination of Independent Terrorist Leaders: an Examination of National and International Implications”, in North Carolina Journal of International Law and Commercial Regulation, Vol. 24/3, 1999, pp. 669-697.

Readings

Suggested reading:

BOGAR Thomas, “Unlawful Combatant or Innocent Civilian? A Call to Change the Current Means for Determining Status of Prisoners in the Global War on Terror”, in Florida Journal of International Law, Vol. 21, No. 1, April 2009, pp. 29-91.

BORELLI Silvia, “Casting Light on the Legal Black Hole: International Law and Detentions Abroad in the ‘War on Terror’”, in IRRC, No. 857, March 2005, pp. 39-68.

6. “Civilianization” of armed conflicts

growing involvement of private military and security companies

Introductory text

A growing number of States (and sometimes international organizations, NGOs or businesses) use private military and security companies (PMSCs) for a wide variety of tasks traditionally performed by soldiers in the fields of logistics, security, intelligence gathering and protection of persons, objects and transports.

The international legal obligations of contracting States, territorial States, home States, all other States and PMSCs and their personnel have been restated (together with recommendations of best practices) in a document[3 ] accepted by most of the States concerned. Contracting States remain bound by IHL even if they contract out certain activities to PMSCs. In many cases, the conduct of PMSCs can be attributed to the contracting State by virtue of the general rules on State responsibility, or the State has at least a due diligence obligation in this respect and must ensure that the PMSCs it contracts act in accordance with IHL. Beyond the few cases of activities IHL rules specifically assign to State agents,[4] it may be argued that IHL implicitly prohibits States from outsourcing direct participation in hostilities to persons who are not combatants.

PMSC staff normally do not fall under the very restrictive definition of mercenaries in IHL.[ 5] Most of them are not de jure or de facto incorporated into the armed forces of a party and are therefore not combatants but civilians. As such, their conduct linked to an armed conflict is governed at least by the rules of IHL criminalizing certain types of conduct. The main problem is that they often benefit from de facto or de jure immunity in the country where they work and that criminal jurisdiction over them in third countries is not as clearly regulated as for members of armed forces and often not backed up by an efficient law enforcement system. As civilians, PMSC staff may not directly participate in hostilities. PMSCs and major contracting States often stress that PMSCs have only defensive functions. The performance of such functions may nevertheless constitute direct participation in hostilities. This is undisputed if they defend combatants or military objectives against the adverse party. On the other extreme, it is uncontroversial that the defence of military targets against common criminals or the defence of civilians and civilian objects against unlawful attacks does not constitute direct participation in hostilities. The most critical, difficult and frequent situation is when PMSC staff guard objects, transports or persons. If those objects, transports or persons are not protected against attacks in IHL (combatants, civilians directly participating in hostilities), guarding or defending them against attacks constitutes direct participation in hostilities and not criminal law defence of others. In our view, this is always the case when the attacker is a person belonging to a party to the conflict, even if he or she does not benefit from or has lost combatant status – the unlawful status of the attacker does not give rise to self-defence. If the person attacked – and under the domestic legislation of some countries even if the object attacked – is civilian, criminal law self-defence may justify the use of force, even against combatants. The analysis is complicated by the absence of an international law standard of self-defence and defence of others and by doubts whether the criminal law defence of self-defence which avoids conviction may be used ex ante as a legal basis for an entire business activity. It must in addition be stressed that self-defence may only be exercised against attacks, not against arrests or the seizure of objects. Indeed the criteria determining when a civilian may be arrested or objects may be requisitioned are too complicated in IHL to allow PMSC staff to determine when they have been met. In our view, self-defence as an exception to the classification of certain conduct as direct participation in hostilities must be construed very narrowly. In addition, PMSC staff providing security for an object will often not be able to know whether that object constitutes a military objective (which excludes self-defence, because the attack would not be unlawful) and whether the attackers do not belong to a party (which would not classify resistance against such attackers as direct participation in hostilities, even when the object attacked is a military objective). At the same time, it is difficult for the enemy to distinguish between combatants, PMSC staff who directly participate in hostilities (whom they may attack and who may attack them) and PMSC staff who do not directly participate in hostilities, may not be attacked and will not attack the enemy. To maintain a clear distinction between civilians and combatants and to ensure that PMSC staff do not lose their protection as civilians, they should therefore not be put in ambiguous situations.

BOSCH Shannon, “Private Security Contractors and State Responsibility: Are States Exempt from Responsibility for Violations of Humanitarian Law Perpetrated by Private Security Contractors?”, in The Comparative and International Law Journal of Southern Africa, Vol. 41, No. 3, 2008, pp. 353-382.

CAMERON Lindsey, “Private Military Companies: Their Status under International Humanitarian Law and Its Impact on their Regulation”, IRRC, Vol. 88, 2006, pp. 573-598.

RIDLON Daniel P., “Contractors or Illegal Combatants? The Status of Armed Contractors in Iraq”, in The Air Force Law Review, Vol. 62, 2008, pp. 199-253.

SCHMITT Michael N., “War, International Law and Sovereignty: Reevaluating the Rules of the Game in a New Century: Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees”, Chicago Journal of International Law, Vol. 5, 2005, pp. 511-546.

SCHMITT Michael N., “Contractors on the Battlefield: the US Approach”, in Militair Rechtelijk Tijdschrift, Vol. 100, No. 7, 2007, pp. 264-281. SOSSAI Mirko, “Status of Private Military Companies’ Personnel in the Laws of War: the Question of Direct Participation in Hostilities”, in The Italian Yearbook of International Law, Vol. 18, 2008, pp. 89-115.